By GARRY RAYNO, InDepthNH.org
CONCORD — The state Supreme Court Friday sided with the State Board of Education in ruling a student’s resident school district is liable for tuition payments to an out-of-district “open enrollment school” he or she attends.
The Supreme Court used a statute update passed by the legislature this year as indicative of the legislature’s intent in prior amendments and the original statute approved in 2009.
Under the current law, residential school districts are responsible for tuition payments up to 80 percent of per pupil costs for students in out-of-district open enrollment schools.
The Pittsfield School District argued it had not voted to join the state’s open enrollment program and was not responsible for the tuition payment to Prospect Mountain School at issue.
The district appealed a 2024 State Board of Education ruling that the district was financially liable for a Pittsfield Middle School student who applied to and was accepted to Prospect Mountain School for the 2023-2024 school.
Prospect Mountain was an “open enrollment school” under a law passed by the Legislature in 2009 and updated in 2022 and in 2024 and 2025.
The Pittsfield superintendent and the school board both denied the parents’ and Prospect Mountain’s request to have the district pay the tuition and the parents appealed the decision to the State Board of Education.
A hearing was held before a Department of Education hearings officer, who sided with the school district saying “under RSA 194-D, a sending school district is not required to pay tuition for a student who is accepted to an open enrollment school that is not in the student’s resident school district unless the sending school district has formally adopted an open-enrollment program, as noted in RSA 194-D.”
The parents requested oral arguments before the State Board of Education, after which the board ruled in favor of the parents, saying that the purpose of the statute “is at least threefold: first, to provide parental choice in public schooling; second, to create a statutory pathway for any school district’s legislative body to designate one or more of its schools as an open enrollment school; and third, to designate the sources of funding for open enrollment schooling.”
The board rejected the district’s contention it did not belong to the open enrollment program because it never voted to do so, saying that argument “ignores the statute’s plain language.”
“Nothing in RSA 194-D:3 contemplates a sending district’s adoption of an ‘open enrollment school program’ unless the sending district intends to establish its own open enrollment school,” the board wrote in its ruling. “RSA chapter 3 194-D requires a resident district to pay the tuition of their pupils attending an open enrollment school outside the resident district regardless of whether the sending district has adopted the provisions (of the statute.)”
The district appealed the decision to the Supreme Court, which wrote in its decision upholding the state board of education, “We will not disturb the State Board’s decision, except for errors of law, unless we are satisfied, by a clear preponderance of the evidence, that it is unjust or unreasonable.”
The court noted that since the appeal the statute had been amended by lawmakers this year to clarify that sending districts to out-of-district open enrollment schools are responsible for the tuition of students residing in their districts.
The Pittsfield district argued that both sending and receiving districts would need to adopt the provisions of the open enrollment program for the tuition payment provisions to apply, but the court rejected that argument.
“There is no other language in the statute that could plausibly be construed to suggest that a sending district must adopt the provisions of RSA 194-D:3 to be subject to the terms of the statute,” Chief Justice Gordon MacDonald wrote for the unanimous court, “and we will not add language to the statute that the legislature did not see fit to include.”
MacDonald also notes the 2025 amendment also makes clear that a sending district is responsible for paying a resident pupil’s tuition to an out-of-district open enrollment school whether or not the sending district has adopted an open enrollment school program.
The open enrollment program had few takers since its inception under the 2009 law, consequently the Republican controlled legislature this and last sessions passed amendments to the statute to make it easier for parents to move students to open enrollment schools outside their resident district.
Opponents argued the program would further exacerbate the growing disparities between property wealthy and property poor school districts, would do little to help students in rural areas, would disproportionately harm small districts and would be a budgeting nightmare for districts with open enrollment schools.
Associate Justices Patrick Donovan, Melissa Countway, and Bryan Gould concurred with MacDonald’s opinion.
Garry Rayno may be reached at garry.rayno@yahoo.com.